Plaintiff v Defendants

1 Mr Mokbel (plaintiff) is a prisoner incarcerated at Barwon Prison. He has commenced a proceeding claiming damages, injunctive relief and declarations against the State of Victoria and the Secretary to the Department of Justice and Community Safety (defendants). The plaintiff's primary claim is in negligence and concerns an incident which occurred on 11 February 2019 in which he was attacked by other prisoners and the conditions of his imprisonment when he returned from hospital after the attack. Mr Mokbel also alleges the Secretary and other prison officials have acted unlawfully under the Charter of Human Rights and Responsibilities Act 2006 (Charter).

2 The defendants have applied for an order that, pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules), the plaintiff's amended statement of claim (ASOC) be struck out on the grounds that it may prejudice, embarrass or delay the fair trial of the proceeding or that it fails to disclose a cause of action. In particular the defendants relied on three arguments:

(a) the ASOC identifies various officeholders as being responsible in a vague and generalised way, often without any discrimination between their statutory roles or functions;

(b) the ASOC alleges the defendants or their servants breached and continue to breach duties alleged to be owed to the plaintiff without adequately pleading the counterfactual of what the plaintiff alleges would have occurred had those duties been performed; and

(c) the ASOC contains allegations that are impermissibly vague and embarrassing, including broad allegations that acts or decisions of various decision-makers were unlawful.

3 The plaintiff opposed the defendants' application.

4 For the reasons given below I will dismiss the defendants' application.

5 In support of its summons the defendants relied on the affidavit of Belinda Iliff affirmed 18 March 2024. The purpose of Ms Iliff's affidavit was to exhibit correspondence from the Victorian Government Solicitors Office, the defendants' solicitors, to the plaintiff's solicitor, setting out the defendants' objections to the ASOC.

6 Both the plaintiff and defendants filed short written submissions and made oral submissions at hearing.

7 I have had regard to all of the submissions and the affidavit of Ms Iliff in determining this application.

8 Rule 23.02 provides:

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading -

(a) does not disclose a cause of action or defence;

(b) is scandalous, frivolous or vexatious;

(c) may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court -

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

9 The Court's power to strike out a pleading is discretionary. In exercising its discretion the Court must seek to give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic) (CPA) and the Rules: to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[1]

10 The general principles relevant to the Court's power to strike out pleadings are well-established. Those principles were summarised by John Dixon J in Wheelahan & Anor v City of Casey & Ors (No 12):[2]

(a) Order 13 of the Rules sets out the relevant requirements of a sufficient pleading, while r 23.02 provides the grounds on which the sufficiency of a pleading may be impugned;

(b) the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy the basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;

(c) the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression 'material facts' is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;

(d) as a corollary, the pleading must be presented in an intelligible form - it must not be vague or ambiguous or inconsistent. Thus a pleading is 'embarrassing' within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;

(e) the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;

(f) pleadings, when well-drawn, serve the overarching purpose of the Civil Procedure Act 2010 (Vic);

(g) a pleading which contains unnecessary or irrelevant allegations may be embarrassing - for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;

(h) it is not sufficient to simply plead a conclusion from unstated facts. In this instance, the pleading is embarrassing;

(i) every pleading must contain in a summary form a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));

(j) the effect of any document or purport of any conversation, if material, must be pleaded as briefly as possible, and the precise words of the document or the conversation must not be pleaded unless the words are themselves material (r 13.03);

(k) particulars are not intended to fill gaps in a deficient pleading. Rather, they are intended to meet a separate requirement - namely, to fill in the picture of the plaintiff's cause of action (or defendant's defence) with information sufficiently detailed to put the other party on guard as to the case that must be met. An object and function of particulars is to limit the generality of a pleading and thereby limit and define the issues to be tried;

(l) A pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;

(m) extensive cross-referencing of facts in a pleading may render parts of the pleading unintelligible;

(n) in an application under r 23.02, the court will only look at the pleading itself and the documents referred to in the pleading;

(o) the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown; and

(p) if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.[3]

11 In Babcock & Brown DIF III Global Co-Investment Fund, LP & Anor v Babcock & Brown International Pty Ltd & Ors (No 2),[4] Hargrave J added to John Dixon J's summary:

To this summary, I would add that the Court should consider the pleading under a challenge as a whole and adopt a practical case management approach to pleading objections, rather than accepting technical objections when the true nature of the case to be met is clear from reading the pleading as a whole and there is no embarrassment to filing a responsive pleading. Such an approach accords with the discretionary nature of the power to strike out and with the overarching purpose under the Civil Procedure Act.

12 In Uber Australia Pty Ltd v Andrianakis,[5] the Court of Appeal noted:

..., in considering whether to strike out a statement of claim as embarrassing, the Court should keep steadily in mind that there are other interlocutory processes subsequent to the pleadings (especially discovery) which continue to perform and progress the function of informing the other side of the case to be met at trial. Thus, even if a defendant simply denies an allegation and puts a plaintiff to proof of it, rather than pleading a positive case as to what the true facts are, the defendant's discovery may well reveal the truth and enable the plaintiff to fill any gaps in the statement of claim which are beyond its knowledge.

13 Relevantly, in Patronis v State of New South Wales,[6] McCallum J considered the nature of pleading the duty owed by an individual officer and a person in custody. Her Honour did so when considering the principle stated by French CJ and Gummow J in their dissenting judgment in Kuhl v Zurich Financial Services Australia Ltd[7] that 'there is an inherent danger in an action in negligence to look first to the cause of damage and what could have been done to prevent that damage, and from there determine the relevant duty, its scope and content'.[8] McCallum J noted:

Those remarks were concerned with the formulation of a duty of care by the court, that is, the court's determination after a hearing as to the content of the duty of care. It was observed later in the same paragraph that the court's findings as to the formulation of the duty of care "will necessarily depend upon the alleged negligence and the evidence led at trial". The judgment continues at [22]:

"Different classes of care may give rise to different problems in determining the nature or scope of a duty of care. In many cases a duty formulated as being one to take "reasonable care" may suffice for the finding of duty in that particular case. Cases that involve the duty of a solicitor to his or her client to exercise professional skill in accordance with the retainer, the duty of a motorist towards other users of the road, or the duty owed by an occupier of land to an entrant with respect to the condition of the premises, ordinarily involve no real controversy over the scope and content of the duty of care; these are considered at the "high level of abstraction" spoken of by Glass JA in Shirt v Wyong Shire Council. But where the relationship falls outside of a recognised relationship giving rise to a duty of care, or the circumstances of the case are such that the alleged negligent act or omission has little to do with that aspect of a recognised relationship which gives rise to a duty of care, a duty formulated at too high a level of abstraction may leave unanswered the critical questions respecting the content of the term "reasonable" and hence the content of the duty of care." (citations omitted).

Kuhl was a case in which the need for specificity in the formulation of the duty was plain. The party said to owe a duty was not Kuhl's employer but a supplier of equipment; there was no general duty owed by that party to provide a safe system of work. The injury suffered by the plaintiff was specific to the equipment supplied (he had his arm sucked into a flexible high-pressure vacuum hose). In my view, the relationship between a law enforcement officer and a person in custody falls more comfortably within the class of case where, at least at the pleading stage, the duty can be formulated at a high level of abstraction as a duty to take reasonable care to avoid the risk of harm due to the use of excessive force. That is not to say that a duty formulated in those terms arose in the novel circumstances of the present case; that is a question for another day. As noted in Kuhl at [19], the court's ultimate formulation of the content of the duty of care will necessarily depend on the alleged negligence and the evidence led at trial.[9]

14 The duty owed by a gaoler to a prisoner is well recognised.[10]

15 Counsel for the plaintiff summarised his case as follows:

[The plaintiff] is imprisoned. As a consequence, he has little autonomy and is subject to great control by the Second Defendant (the Secretary) and the relevant prison officials, which entails a correlate responsibility on them for his safety and wellbeing while he remains imprisoned. They owe him a duty of care.

He was injured in an attack, which, in the circumstances pleaded in the [ASOC], was foreseeable and ought to have been prevented.

Since returning from hospital, he has been, and continues to be, imprisoned in harmful conditions.

He says that a cause of the harm he has suffered and continues to suffer is the negligence of those who owe him a duty of care.

For the harm he has suffered, he seeks damages, relying on the tort of negligence.

For the harm he continues to suffer, by reason of the conditions in which he is imprisoned, he seeks declaratory and injunctive relief. He again relies on the tort of negligence. He further relies on unlawfulness under the Corrections Act 1986 and under the Charter of Human Rights and Responsibilities Act 2006.

16 The plaintiff's pleading is set out in sections, according to a table of contents.

17 In Part A of the ASOC the plaintiff sets out the relevant officers, their statutory functions and powers, their status as persons whom s 23(1)(b) of the Crown Proceedings Act 1958 (Vic) (CP Act) can make vicariously liable, and the application of the Charter to those persons.

18 The plaintiff identifies the first defendant as the Crown (State), named in accordance with s 22(2) of the CP Act and the second defendant as the Secretary as the Department Head of the Department of Justice and Community Safety and Secretary within the meaning of the Corrections Act 1986 (Vic) (Corrections Act) (paragraphs 4 and 6). Corrections Victoria is identified as a business unit of the Department headed by the Commissioner, Deputy Commissioners and Assistant Commissioners (collectively referred to as the Commissioners) (paragraph 8). Governor is defined as the person having functions, powers and duties of the Governor of Barwon, from time to time under the Corrections Act (paragraph 11). The plaintiff's pleading defines Prison officers to include the General Manager, Prisons Operations Manager, Acting Senior Operations Manager, Acting General Manager and prison officers within the meaning of the Corrections Act (collectively Prison Officers) (paragraph 12).

19 The plaintiff pleads that the State is liable under s 23(1)(b) of the CP Act for the torts of its servants or agents, including the Secretary, the Commissioners, the Governor and the Prison officers (paragraph 13), with those persons and all other prison officers within the meaning of ss 12 and 14 of the Corrections Act, also being subject to the Charter (paragraph 14).

20 The plaintiff defines the period from 17 May 2008, being the date on which the plaintiff was held in prison and so in the legal custody of the Secretary, as the relevant period (paragraph 10).

21 Part B of the ASOC sets out the alleged rights of the plaintiff and the functions of the various officers during the relevant period.

22 The plaintiff's alleged rights under the common law and under legislation, including the Charter are set out at paragraph 15 of the ASOC.

23 The functions of the Secretary under the Corrections Act and Corrections Regulations 2009 (Vic) or Corrections Regulations 2019 (Vic) are set out in paragraphs 16 and 17. The functions of the Secretary include the responsibility for monitoring performance of all correctional services to achieve the safe custody and welfare of prisoners, and the power to order the separation of a prisoner if reasonable for the safety or protection of the prisoner, but for no longer than is necessary to achieve that purpose.

24 The Commissioners' relevant functions and powers under the Corrections Act are listed at paragraph 18 of the ASOC, including the power to delegate to any employee of the Department, including the Governor or the Prison officers, any of the Commissioner's powers or functions under the Corrections Act. The relevant responsibilities of the Governor are outlined in paragraph 19, including the responsibility for the management, security and good order of the prison and the requirement to take reasonable steps to ensure that the Prison officers knew what their powers and duties were.

25 Paragraph 20 of the ASOC pleads that during the relevant period the Prison officers were subject to the directions of the Governor and that the Prison officers were required to immediately report to the Governor anything that might reasonably be thought to jeopardise the security of the prison or the welfare of the prisoners, including the plaintiff.

26 During the relevant period the Governor and Prison officers, who were in charge of the prison or part of it, were required to take all reasonable steps for the security of the prison and for the safe custody and welfare of the prisoners, including the plaintiff (paragraph 21).

27 The plaintiff pleads that during the relevant period the Commissioners have, from time to time, delegated relevant powers and functions under the Corrections Act to prison staff (paragraph 22).

28 Paragraph 23 of the ASOC pleads the existence and functions of sentence management panels during the relevant period.

29 Part C of the ASOC is entitled Operation of the Prison.

30 Paragraph 24 pleads the plaintiff's designation as a Major Offender within the meaning of the Sentence Management Manual, his maximum security rating, placement in high security management accommodation and that from April 2012, the plaintiff was subject to the oversight of the High Risk Management Advisory Panel.

31 Paragraph 25 pleads that from time to time, the Commissioner issued authorised policy[11] and procedure documents relevant to the operation of the prison, including the Sentence Management Manual, which determined prisoners' security ratings. Paragraph 26 pleads the existence, during the relevant period, of the Major Offenders Unit, and the Corrections Victoria Intelligence Unit (the central unit responsible for providing intelligence services to Corrections Victoria and evaluating the threat or risk to the safety of a prisoner) and the Prison Intelligence Unit (responsible for prison-based intelligence functions).

32 Relevant Prison Officers are defined in paragraph 26A to be the General Manager, Prison Operations Manager, Senior Operations Manager, any person acting in one of those positions and 'each prison officer who, for the time being, was responsible for ensuring the safety, protection and wellbeing of the plaintiff'.

33 Part D of the ASOC is headed 'Facts'.

34 This section pleads the attack on the plaintiff on 11 February 2019 (paragraphs 27 to 29) and the conditions of the plaintiff's imprisonment before the attack (paragraph 30). Paragraph 32 to 34 plead the receipt by the prison mail office of an anonymous note foreshadowing an incident involving a prisoner held in the plaintiff's unit, the note's assessment by the Prison Intelligence Unit and subsequent increase in security at the prison.

35 Paragraphs 35 and 36 plead the existence of a second note leading Prison officers to believe a prisoner other than the plaintiff was at risk.

36 Paragraph 37 pleads the details of an article published in a newspaper in which various statements were made about the plaintiff, including that he had used his influence in the prison to save a prisoner from being assaulted by a group of other prisoners (first article). The plaintiff alleges that one or more Prison officers identified the first article as potentially contributing to an escalated risk to the plaintiff's safety (paragraph 38). On 10 February 2019 the Prison Operations Manager sent a copy of the first article to the Acting Senior Operations Manager and Acting General Manager of the prison resulting in the prison being placed in lock down for one hour (paragraphs 39 and 40). During that lockdown the Operations Manager and a Prison officer spoke to the plaintiff, who said he did not have concerns about his safety as a result of the first article, and another prisoner to determine the level of anger towards the plaintiff (paragraph 41).

37 Paragraph 42 pleads the steps required by the relevant Sentence Management Manual when a media report was identified as potentially contributing to an escalated security risk to the safety of any prisoner. Paragraph 43 pleads allegations about the suggestions made about the plaintiff in the first article and how the article might be construed by other prisoners. The plaintiff then alleges that as a consequence of the publication of the first article there was a real and enhanced risk that a group of prisoners would attempt to harm the plaintiff (paragraph 44); and that the Secretary, Commissioners, Governor and Relevant Prison Officers knew or ought to have known of that risk (paragraph 45).

38 Paragraph 46 pleads that the publication of the first article was a cause of two prisoners carrying out the attack on the plaintiff. Paragraphs 47 and 48 plead the medical consequences of the attack on the plaintiff and his return to the prison from hospital on 9 April 2019.

39 A second article was published in the Herald Sun newspaper on 11 May 2019 (second article) in which the plaintiff was accused of being a 'snitch' while in prison (paragraph 49), following which the plaintiff was placed in the High Security Unit (HSU) (paragraph 50).

40 Paragraph 51 pleads the conditions of the HSU, including solitary confinement for extended periods and removal of work rights (HSU conditions).

41 The plaintiff alleges that following the publication of the second article he has been subject to long-term management placement within the meaning of the Sentence Management Manual and subject to HSU conditions (paragraph 52).

42 Paragraph 53 pleads that following the publication of the second article, he was placed in the HSU for the purpose of protecting him from harm from other prisoners and not because he committed any prison offence or because of his own misconduct.

43 Paragraph 54 pleads the knowledge of the Secretary, Commissioners, Governor and Relevant Prison Officers of the plaintiff's acquired brain injury as a result of the attack.

44 Paragraph 55 pleads that the plaintiff's placement in the HSU has prolonged, exacerbated and aggravated the plaintiff's injury and disability.

45 Part E of the ASOC contains the plaintiff's allegations of negligence. The existence and content of the duty of care alleged to be owed by the Secretary, Commissioners, Governor and Relevant Prison officers is pleaded at paragraphs 56, 56A and 56B, including the non-delegable duties alleged to be owed by the Secretary and Governor to the plaintiff.

46 The alleged breaches of duty said to result in the attack on the plaintiff are pleaded in paragraphs 57 to 60. Paragraph 57 pleads that between the publication of the first article and the attack a reasonable standard of care required the Secretary, Commissioners, Governor and Relevant Prison Officers to take reasonable steps to prevent harm to the plaintiff from the group of prisoners identified in the first article. Paragraph 58 pleads that the Secretary, Commissioners, Governor and Relevant Prison Officers failed to take those steps or failed to ensure such steps were taken. Paragraph 59 pleads negligence by one or more of the Secretary, Commissioners, Governor and the Prison officers. The plaintiff alleges the negligence was the cause of the attack (paragraph 60).

47 The plaintiff's alleged injuries suffered as a result of the attack are pleaded at paragraph 61.

48 The State's vicarious liability is pleaded at paragraph 61A.

49 The alleged breaches of duty since the attack are pleaded at paragraphs 62 to 64. The plaintiff pleads that under the Sentence Management Manual placement of a prisoner in long term management requires the initial approval of the Assistant Commissioner, Sentence Management Division and, after that, annual review by the Assistant Commissioner. Long terms management placements are subject to ongoing oversight and regular review by the Major Offenders Unit and Sentence Management Panels, with the Sentence Management Panels to review prisoners classified as long term management on at least a monthly basis to ensure the prisoner's placement is for the minimum time and under the minimum restrictions necessary to ensure the safety and security of the prison system and the prisoner (paragraph 62).

50 Paragraph 63 pleads what a reasonable standard of care required of the Secretary, Commissioners, Governor and Prison officers on the plaintiff's return from hospital, including to:

(a) afford the plaintiff access to reasonable medical care;

(b) afford the plaintiff access to open air and other healthful living conditions;

(c) place the plaintiff in conditions that are not such as may worsen, exacerbate or aggravate his disability and medical condition caused by the attack, including having regard to his rehabilitation needs;

(d) not subject the plaintiff to the HSU conditions unless justified by conduct of the plaintiff or by the risk he might pose to other prisoners; and

(e) provide reasonably available ways to protect the plaintiff, that do not have the harmful effects of the HSU conditions.

51 Paragraph 64 pleads the failure to meet those requirements by the Secretary, Commissioners, Governor and Relevant Prison Officers.

52 Paragraph 65 pleads the resultant alleged negligence of the Secretary, Commissioners, Governor and Prison officers and the plaintiff's further injury. The State's vicarious liability is pleaded at paragraph 65A.

53 In paragraph 66 the plaintiff alleges that unless restrained from doing so the Secretary, Commissioners and Governor will continue not to meet the requirements pleaded in paragraph 63, and the likelihood this will cause further injury to the plaintiff.

54 Part F of the ASOC pleads the unlawful conduct. It pleads that since the publication of the second article, the plaintiff has been held in the HSU subject to HSU conditions for the purpose of protecting the plaintiff from the risk of harm from other prisoners (paragraph 67). Paragraph 68 alleges it has been unlawful under the Corrections Act for the Secretary, Commissioners, Governor or the Relevant Prison Officers to hold the plaintiff in the HSU subject to HSU conditions. The particulars to this paragraph of the ASOC say it is unlawful because it is beyond the scope of the statutory powers; for an improper purpose; legally unreasonable; and in consequence of a decision made without having taken into account a mandatory consideration, or having taken into account an impermissible consideration.

55 Paragraphs 69 and 70 plead that, unless restrained from doing so, the Secretary, Commissioners and Governor will continue to unlawfully hold the plaintiff in the HSU subject to HSU conditions for his own protection; or alternatively they will, unless restrained, continue to contravene the plaintiff's right to be in open air for at least one hour a day, to access reasonable medical care and to access special care as a person with an intellectual disability.

56 Part G of the ASOC pleads unlawfulness under s 38 of the Charter. Paragraph 71 pleads that by reason of the matters pleaded in Parts E and F of the ASOC, the plaintiff may seek relief on the ground of unlawfulness arising otherwise than because of the Charter, within the meaning of s 39(1) of the Charter. The plaintiff pleads that 'By reason of the matters alleged above', the acts and decisions of the Secretary, Commissioners, Governor and Relevant Prison Officers, between the time the first article was published and the attack, limited the plaintiff's rights under ss 9, 10(b) and 22 of the Charter (paragraph 72). Paragraph 73 mirrors the pleading in paragraph 72 but in relation to the plaintiff being held in the HSU subject to HSU conditions since the publication of the second article.

57 Paragraphs 74 to 76 of the ASOC plead unlawfulness under s 38(1) of the Charter.

58 In summary, the defendants' objection to the ASOC was that the plaintiff's case is pleaded at such a level of generality and ambiguity that the defendants do not know the case they must meet, or will be prejudiced in their defence.

59 First, the defendants contended that when read as a whole, the ASOC attacks the decisions, acts or omissions of various officeholders in an indiscriminate manner. The defendants argued that each of the various officeholders identified in the ASOC have different statutory functions, powers and duties, which while recognised by the plaintiff at the outset of the ASOC are not referred to in the material facts pleaded in support of the alleged causes of action.

60 The State is only liable in tort under the CP Act for the tortious acts or omissions of its servant, agent or independent contractor, acting in the course and scope of the employment or engagement. The defendants submitted that the plaintiff is required to plead facts which establish that an employee, agent or independent contractor was liable to the plaintiff and in doing so, identify the person alleged to be responsible for the tortious conduct by name or office or other circumstance.

61 The defendants submitted that the plaintiff has not adequately articulated a cause of action against the State by reference to the actions or omissions of a particular tortfeasor. The broad generalisations in the ASOC against the Secretary, the Commissioners, the Governor, the Prison Officers and the Relevant Prison Officers do not articulate clearly how each of the identified officeholders is alleged to have been responsible for the tortious or unlawful conduct. For example, Part G of the ASOC concerns the alleged contraventions of the Charter. Paragraph 72 of the ASOC alleges that 'By reason of the matters alleged above, the acts and decisions of' the Secretary, Commissioners, Governor and Relevant Prison Officers resulted in the attack on the plaintiff'. The acts and decisions are not identified and nor are they allocated to any particular officeholder. The defendants said they have been left to assume that the 'acts and decisions' pleaded at paragraph 72 refer to Parts D and E of the ASOC which set out the material facts of the claim and the alleged breaches of duty.

62 At the hearing it was not seriously in dispute that there is an imbalance in the information available to the plaintiff and the defendants about the plaintiff's imprisonment. The plaintiff has been assisted by a report prepared by former Justice Ipp into the circumstances of the plaintiff's attack, however, he does not have access to detailed information and records held by the prison authorities about which officials among the hierarchy of officials are responsible for which prisoners, class of prisoners or units within the prison. Nor does the plaintiff have access to what intelligence was known by particular officials, how and to whom that intelligence was shared or the advice they received. The plaintiff does not have a way of identifying which individual officers were responsible for his wellbeing prior to and at the time of the attack.

63 It is to be expected that the plaintiff will have access to considerably more of that information following discovery. Counsel for the defendants submitted that the proper course was for the plaintiff to have applied for preliminary discovery in order to obtain the information to plead his case with an appropriate level of detail.

64 Second, the defendants contended that because the plaintiff's claim in negligence is a claim of omission, the plaintiff is required to plead a counterfactual.[12] The defendants said that the plaintiff must, but does not, plead what each of the officeholders identified by the plaintiff would have done had reasonable care been exercised, and how that action would have averted the loss. The plaintiff's counterfactual is limited to a rolled-up plea that various officeholders ought to have taken 'reasonable steps' or to ensure certain 'requirements' were met to carry out their duty, without setting out what steps or requirements ought to have been performed by each in response to the first article.

65 The defendants' third concern related to the plaintiff's pleading of unlawful conduct. The defendants said that at paragraph 68 of the ASOC the plaintiff has alleged it is unlawful under the Corrections Act for various officeholders to hold the plaintiff in the HSU subject to HSU conditions. The particulars to paragraph 68 refer to 'statutory provisions pleaded in Part B' and say the conduct of holding the plaintiff in the HSU, subject to HSU conditions, is unlawful because it is beyond the scope of the statutory powers, for an improper purpose, legally unreasonable and in consequence of a decision made without having taken account of a mandatory consideration, or having taken account of an impermissible consideration. The defendants submitted that in order to put them fairly on notice of the case they have to meet, the plaintiff should have identified the relevant powers, the improper purpose and the relevant mandatory and irrelevant considerations.

66 It is clear that in order to establish the vicarious liability of the State the plaintiff would need to identify the decisions, acts or omissions of various officeholders said to be acting in the course of their employment. So much was acknowledged by the plaintiff's counsel. I agree with the defendants' counsel that an option open to the plaintiff was to apply for preliminary discovery to obtain further information. The plaintiff did not provide any particular reason for not having done so. However, given the plaintiff did not do so but has commenced the proceeding and filed its ASOC, it would be inconsistent with the overarching principle of the CPA to now strike out the ASOC because of gaps caused by the plaintiff's ignorance of matters within the defendants' knowledge and to require the plaintiff to seek preliminary discovery. It would be inconsistent because, absent some form of discovery, preliminary or otherwise, the plaintiff would be in no better position to plead the particular decisions, acts or omissions of the various officeholders and because the further information that may allow the plaintiff to refine his pleading is in the custody of the defendants.

67 I accept the plaintiff's counsel's submission that the facts of the attack and the plaintiff's injury are relatively simple. I also accept counsel's submission that the plaintiff has, based on the information presently known to him, pleaded his gaolers' alleged knowledge of the risk to his safety and their alleged failure to protect him. Similarly, the plaintiff has pleaded his imprisonment in the HSU under HSU conditions for his own protection rather than his misconduct.

68 When a plaintiff alleges negligent omission the causal link between the breach of duty and claimed damage can only be established by a counterfactual hypothesis.[13] The counterfactual hypothesis must identify what the defendant would have done had reasonable care been exercised and how the taking of that action would have averted the loss or damage the plaintiff in fact suffered.[14] The ASOC at paragraph 58 sets out the alleged failures of the Secretary, the Commissioners, the Governor and the Prison officers following the publication of the first article but does not clearly plead what steps each of those people should have taken. The sufficiency of the plaintiff's counterfactual, however, is a matter that will be informed by the evidence at trial. As has been said before, there are other interlocutory processes subsequent to pleadings which continue to inform the other side of the case to be met at trial. In my view it would not serve the overarching purpose of the CPA to strike out the plaintiff's pleading at this stage, before discovery and evidence, on the basis that the counterfactual is currently insufficiently pleaded. Again, this is because the information that would allow the plaintiff to more particularly plead the counterfactual is in the possession of the defendants and the plaintiff's knowledge of this information is likely to be informed by discovery. It is to be expected that the plaintiff's counterfactual will be disclosed following discovery, the filing of evidence and indeed, perhaps further refined after the evidence given at trial.

69 In relation to the sufficiency of the unlawful conduct pleading, the plaintiff's ASOC at paragraph 68 identifies unlawfulness under the Act, being the Corrections Act. It does not specify a particular provision of the Act, however the particulars to this paragraph refer to the statutory provisions pleaded in Part B of the ASOC. In my view this aspect of the defendants' complaint could be adequately addressed by a request for further and better particulars. Accordingly, I will not strike out this aspect of the plaintiff's pleadings at this stage.

70 Finally, the defendants referred to other difficulties with particular paragraphs of the ASOC which the defendants' solicitors had identified in correspondence to the plaintiff's solicitors. The defendants submitted that some of these difficulties could be addressed by provision of further and better particulars. In a letter dated 15 March 2024 the defendants' solicitor identified twenty eight objections to particular paragraphs or parts of paragraphs of the plaintiff's pleading. Many of the objections were on the basis that the identified pleading was 'Embarrassing/impermissibly vague' without further elaboration.

71 The defendants' counsel made no further submissions about these issues at the hearing. Accordingly, I have assumed these complaints were either addressed under the submissions made about the defendants' other issues or no longer pressed.

72 I am satisfied that when considered as a whole and at this stage of the proceeding, being before discovery, the plaintiff's pleading is not embarrassing such that it necessitates the pleading being struck out. In reaching this decision I have been particularly swayed by the current disparity in the information available to the plaintiff and the defendants which has obviously informed some of the current generality of the plaintiff's current pleading. It is to be expected that the plaintiff's case will be further defined and refined following the various interlocutory processes available to the parties. If that were not to occur, there is nothing in this decision which would preclude the defendants renewing their application.

73 For the reasons given above I will dismiss the defendants' summons seeking orders striking out the plaintiff's ASOC.

74 I request the parties confer on any further consequential orders required as a result of these reasons, including any order in relation to costs. If the parties are unable to reach agreement on those issues within seven days of the date of these reasons, the proceeding will be relisted for oral submissions on costs.

SECRETARY, DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY

[1] Civil Procedure Act 2010 (Vic) s 7-9.

[2] [2013] VSC 316, [25]. John Dixon J's summary of the principles was adopted and applied by the Court of Appeal in Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186, [50].

[4] [2017] VSC 556, [15].

[5] [2020] VSCA 186; (2020) 61 VR 580, 602 [57].

[6] [2018] NSWSC 516, [40].

[7] (2011) 243 CLR 361.

[8] Patronis v State of New South Wales (n 6), [38] quoting Kuhl v Zurich Financial Services Australia Ltd (n 7), 370 [19].

[9] Patronis v State of New South Wales (n 6), [39]-[40].

[10] Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177, 183 (Dixon CJ, Fullager and Taylor JJ); Price v New South Wales [2011] NSWCA 341, [35] (Allsop P); New South Wales v Bujdoso [2005] HCA 76; (2005) 227 CLR 1, 13 [44] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

[11] In fact this paragraph of the ASOC refers to 'police and procedure documents' which I have taken to mean 'policy and procedure documents'.

[12] Wodonga Regional Health Service v Hopgood [2012] VSCA 326; (2012) 37 VR 284, 292 [31] (Maxwell P with Buchanan and Harper JJA agreeing).